Citation Nr: 1802442 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-26 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left upper extremity. 2. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right upper extremity. 3. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. 4. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity. 5. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus with hypertension, erectile dysfunction, and onychomycosis of the bilateral fifth toenails. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to June 1969, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal and the Combat Action Ribbon. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision of the RO that, in pertinent part, denied a disability rating in excess of 20 percent for service-connected diabetes mellitus with hypertension and onychomycosis of the bilateral fifth toenails; and from a September 2009 decision of the RO that denied entitlement to TDIU benefits. The Veteran timely appealed. In July 2011, the Veteran testified during a hearing before RO personnel. In March 2013, the Veteran testified during a video conference hearing before the undersigned. In November 2013, the Board remanded the matters for additional development. In January 2014, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In an August 2014 decision, the Board denied a disability rating in excess of 20 percent for diabetes mellitus with hypertension and onychomycosis of the bilateral fifth toenails; and remanded the issue of entitlement to a TDIU for further development. The Veteran appealed the August 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2015 Joint Motion for Partial Remand, the parties moved to vacate the portion of the Board decision that denied entitlement to an increased rating for diabetes mellitus with hypertension and onychomycosis of the bilateral fifth toenails; and to remand the case to the Board. The Court granted the motion. Thereafter, the case was returned to the Board. The parties to the July 2015 Joint Motion for Partial Remand noted that the additional disability of erectile dysfunction has been associated with the Veteran's diabetes mellitus. The Board notes that the U.S. Court of Appeals for Veterans Claims has held that the Board must broadly construe claims. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the issue on the title page reflects the expanded issue on appeal as a result of the Clemons decision. In this regard, although it is noted that the RO appears, in its most recent January 2017 supplemental statement of the case (SSOC) to have separated the issue of erectile dysfunction out from the Veteran's diabetes mellitus type II, there was no explanation provided as to why such was done, as the erectile dysfunction is not separately compensable. As such, the Board continues to construe this disability as part of the overall diabetes mellitus type II disability. The claims for the Veteran's diabetes mellitus type II and TDIU were previously before the Board in December 2015, at which time they were remanded for additional development. These claims have once again returned to the Board. While on remand, the Veteran also appealed June 2016 and September 2016 rating decisions which granted the Veteran increased evaluations for his bilateral upper and lower extremity peripheral neuropathy with evaluations of 20 percent each effective December 30, 2013. The record reflects that the Veteran timely appealed those decisions and they have been certified before the Board accordingly. As such, these issues have been added as captions to the title page and shall be adjudicated accordingly. In September 2017, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. The issues entitlement to an increased evaluation for diabetes mellitus type II and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The probative medical evidence of record shows that the Veteran's peripheral neuropathy of the bilateral upper extremities has primarily affected his radial, median, and ulnar nerves and manifested as an overall mild severity for all 3 throughout the period of appeals. 2. The probative medical evidence of record shows that the Veteran's peripheral neuropathy of the bilateral lower extremities has primarily affected his sciatic nerves and manifested as an overall moderate severity throughout the period of appeals. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the left upper extremity are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code (DC) 8613 (2017). 2. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the right upper extremity are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code (DC) 8613 (2017). 3. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code (DC) 8613 (2017). 4. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.124a, Diagnostic Code (DC) 8613 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2016). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Service connection with separate evaluations has been established for peripheral neuropathy of the bilateral upper and lower extremities. They have been rated as 20 percent for each extremity throughout the period on appeal. 38 C.F.R. § 4.124a, Diagnostic Codes 8613 and 8620. Under Diagnostic Code 8613, a 20 percent evaluation is warranted for incomplete paralysis that is mild. Id. A 30 percent evaluation is warranted for incomplete paralysis of a minor extremity that is moderate. Id. A 40 percent evaluation is warranted for incomplete paralysis of a major extremity that is moderate. Id. A 60 percent evaluation is warranted for incomplete paralysis of a minor extremity that is severe. Id. A 70 percent evaluation is warranted for incomplete paralysis of a major extremity that is severe. Id. An 80 percent evaluation is warranted for complete paralysis of a minor extremity. Id. A 90 percent evaluation is warranted for complete paralysis of a major extremity. Id. Under Diagnostic Code 8620, a 20 percent evaluation is warranted for incomplete paralysis that is moderate. Id. A 40 percent evaluation is warranted for incomplete paralysis that is moderately severe. Id. A 60 percent evaluation is warranted for incomplete paralysis that is severe, with marked muscular atrophy. Id. An 80 percent evaluation is warranted for complete paralysis, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Id. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Note. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. Analysis The Veteran contends that his peripheral neuropathy of the bilateral upper and lower extremities is worse than reflected by his current evaluations of 20 percent for each extremity. In this regard, the Veteran has complained of great pain with difficulty performing tasks which require gripping, pulling, pushing, carrying, ambulating, and sitting. The Veteran has specifically reported that it was extremely difficult for him to perform his janitorial duties at his usual job due to his peripheral neuropathy in that he could not use his hands to grip, so he constantly dropped materials and equipment and had difficulties being on his feet for prolonged periods. As an aside, the Board notes that the Veteran's claim stems from a claim for increased evaluations for conditions that had already been service connected. Thus, the scope of inquiry for the Veteran's appeals dates back to December 30, 2012, or one year prior to the date of claim on December 30, 2013 with the one year lookback period. A review of the Veteran's outpatient treatment records reveals that he has been treated for polyneuropathies associated with his diabetes mellitus, type II throughout the period of appeals. Treatment records generally reflect complaints of numbness and tingling in all four extremities, with parasthesias and burning sensations in the lower extremities. There has been no indication of any symptoms other than wholly sensory, to include any loss of strength, reflexes, or muscle atrophy. The Veteran was provided with a VA examination in September 2014 for all of his disabilities in conjunction with an evaluation for TDIU. An examination of the Veteran's polyneuropathies was conducted as a part of this inquiry. It was noted that the Veteran remains symptomatic for his polyneuropathies. He complained of pins and needles sensations at the bottom of both feet. It was noted that these symptoms had been experienced for multiple years. It has not changed in nature or character. It does not impact the Veteran's capacity to ambulate or maintain his balance. His fingers "go to sleep" daily. This was also noted to be a long-standing symptom with no changes. The examiner found that the Veteran would be capable of light to medium work based on this condition, with restriction from activities that require fine motor or dexterous finger/hand movements. The Veteran was provided with an additional VA examination in January 2016. In regard to the upper extremities, that examination showed normal muscle strength in both upper extremities. The examiner classified the Veteran's neuropathy of each upper extremity as mild, affecting the radial, median, and ulnar nerves of each upper extremity, right and left. In regard to the lower extremities, that examination showed normal reflexes in the bilateral lower extremities and full strength. There was decreased sensation at the ankle, lower leg, and feet/toes for each lower extremity. There was absent vibration sensation in the lower extremities. The examiner concluded that the Veteran had incomplete paralysis of each lower extremity, right and left, affecting the sciatic nerve, which is moderate in severity. It was further noted that the Veteran's diabetic peripheral neuropathy of the bilateral upper/lower extremities impacts his ability to do physical work. In this regard, it was noted that he would not be able to do work with his bilateral hands involving fine motor control and dexterity. His gait/ambulation and balance are not affected. His overall condition, per the Veteran's own statements, has stayed the same for many years. He would be capable of doing light to medium work, with restrictions on his hands, and he would be capable of sedentary work. After having carefully reviewed the evidence of record, the Board finds that the Veteran's peripheral neuropathy of the bilateral upper extremities more nearly approximates an evaluation of 20 percent for each extremity for the entire period of appeal. As treatment records prior to December 30, 2013 did not appear to reflect symptoms first shown on the September 2014 VA examination and subsequently shown on the January 2016 VA examination, as there is no mention of significant sensory loss in the upper extremities or more moderate symptoms of pain and burning sensation in the lower extremities in such records, the Board finds that the earliest date upon which the Veteran's extremities warranted the 20 percent evaluations was the December 30, 2013 effective date originally assigned. This is because there is no indication that the Veteran complained of these increased symptoms until he filed his December 30, 2013 claim. Therefore, the earliest date upon which these symptoms appear to have manifested is best reflected by the submission of the claim for increase itself. The evidence of record shows that the Veteran's neuropathies of the upper extremities were to an overall mild severity throughout the period of appeal, as they appeared to be wholly sensory, with no additional pain associated and no significant functional loss. There was no loss of reflexes or muscle strength, or any signs of muscular atrophy. Also, although three nerves have been noted to be involved, separate evaluations may not be assigned when evaluating an upper extremity peripheral nerve disability. See M-21, III.iv.4.G.4.f. (Unlike the upper extremities, separate evaluations of the lower extremities may be assigned for symptoms that are separate and distinct, do not overlap, and are attributed to different lower extremity nerves). The evidence of record also shows that the Veteran's neuropathies of the lower extremities were to an overall moderate severity throughout the period of appeal, as they also appeared to be wholly sensory, but with a more moderate loss of sensation, to include pain and burning. However, there was also no loss of reflexes or muscle strength, or any signs of muscular atrophy, to include no significant effects on gait/ambulation or balance. In order to warrant higher evaluations, the Veteran's symptom severity would have to be of a moderate or higher level for his upper extremities and/or a moderately severe or higher level for his lower extremities. The evidence of record, however, has not shown such a moderate or moderately presentation via both objective observation and consideration of the Veteran's subjective complaints, despite his contentions to the contrary. Thus, the Veteran's peripheral neuropathies would not warrant higher than 20 percent evaluations for each extremity at any time during the period on appeal. The Board has considered whether staged ratings are warranted, but finds that they are not, as the evidence, including the Veteran's credible and probative statements, does not show that there are distinct periods of time where evaluations higher than a 20 percent for each extremity are warranted. The evidence of record does not warrant ratings in excess of those assigned for the peripheral neuropathy of the bilateral upper and lower extremities at any time during the period pertinent to this appeal. 38 U.S.C. § 5110 (2012). The Veteran has not raised the matter of an extrascheduler rating, and the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (holding that either the veteran must assert that a scheduler rating is inadequate or the evidence must present exceptional or unusual circumstances). No further action as to this specific matter is required. ORDER Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left upper extremity is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right upper extremity is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity is denied. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is denied. REMAND Diabetes Mellitus Type II A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Id. at 271. Here, the Board previously remanded the Veteran's claim for further evidentiary development in December 2015. Specifically, the Board directed that the Veteran should be provided with a new VA examination for his diabetes mellitus type II. It was noted that the RO assigned a 20 percent disability rating for the Veteran's service-connected diabetes mellitus with hypertension, erectile dysfunction, and onychomycosis of the bilateral fifth toenails. Complications are rated as part of the diabetic process unless they are compensably disabling, in which case they are rated separately. In this case, the Veteran's peripheral neuropathy of each upper and lower extremity are separately rated, and should not be considered in the evaluation of the Veteran's diabetes mellitus with hypertension, erectile dysfunction, and onychomycosis of the bilateral fifth toenails. It was further noted that the most recent VA examinations conducted in conjunction with this claim were from January 2014 and September 2014. The January 2014 examiner specifically noted that the Veteran reported that his activities were not regulated or restricted by his doctor. The Veteran also reported that he required one injection per day of insulin; and that he saw a diabetic care provider less than two times per month. He reported no episodes of ketoacidosis or of hypoglycemic reactions that required hospitalization over the past 12 months. The Veteran reported progressive loss of strength due to diabetes mellitus, but no weight loss. The September 2014 examiner noted that the Veteran's service-connected diabetes mellitus was under adequate control; and that the Veteran took one insulin injection daily. No hypoglycemic episodes or ketoacidosis were documented, and there were no hospitalizations for uncontrolled blood sugars. In contrast, however, a private physician in September 2010 indicated that the Veteran utilized insulin and oral medications, a modified diet, and restricted his activities to maintain his blood glucose within the acceptable range. The physician recommended that the Veteran continue to utilize his prescribed medicines, maintain his diabetic diet, and avoid strenuous occupational and recreational activities due to his diabetes mellitus-i.e., no lifting over ten pounds, no swimming, no jogging, no grass cutting, and no stair climbing or any other form of physical exertion. The Board found that the matter of regulation/restriction of activities needed to be further clarified upon examination, as VA cannot rate the matter without further clarification. In so doing, the VA examiner was specifically requested to review the September 2010 record and address whether the diabetes mellitus requires regulation of activities, and, if not, discuss this finding in terms of the September 2010 findings by a private physician. Here, the Veteran was provided with a new VA diabetes examination in January 2017. However, even though the examiner mentioned the aforementioned requested opinion, he did not actually indicate that he had reviewed or specifically discussed the findings of the September 2010 private treatment record. Rather, he merely discussed the Veteran's present statements that he was not currently under a regulation of activities and that records since 2014 had not shown treatment via a regulation of activities. The Board finds that the January 2017 VA examiner did not fully comply with the December 2015 Remand instructions, as he did not address the ultimate issue at hand (i.e. whether the September 2010 private treatment record findings revealed an actual regulation of activities in regard to the Veteran's diabetes mellitus type II as contemplated by VA regulation). As such, the Board finds that the resolution of the issue at hand is, thus, frustrated, as the Board is not permitted to substitute its own medical judgement regarding this issue in accordance with Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), as directed by the Court in the July 2015 Joint Motion for Partial Remand. Accordingly, the claims file should be returned to the January 2017 VA examiner for an addendum opinion which addresses the aforementioned issue with a complete rationale for any opinions rendered. TDIU Additionally, as the resolution of the aforementioned rating claim for diabetes mellitus type II could affect the resolution of the claim for TDIU, the Board finds them to be inextricably intertwined. Harris v Derwinski, 1 Vet. App. 80 (1991). As such, the adjudication of the claim for TDIU must be deferred. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be returned to the VA examiner who conducted the January 2017 VA diabetes examination. If that examiner is no longer available, then the claims file should be forwarded to an appropriate specialist of like skill and training. The examiner is requested to review the entire claims file. In particular, the examiner must address whether the diabetes mellitus requires regulation of activities, and, if not, discuss this finding in terms of the September 2010 findings by a private physician (cited above). In so doing, the examiner should specifically review and address the September 2010 findings and seek to explain any discrepancies in the provision of regulation activities, to include whether such is actually a regulation of activities as contemplated by VA regulations. All opinions must be supported by a detailed rationale in a typewritten report. 2. After ensuring that the requested actions are completed, readjudicate the claims on appeal. The claim for an increased rating for diabetes mellitus with hypertension, erectile dysfunction, and onychomycosis of the bilateral fifth toenails should take into consideration provisions of 38 C.F.R. § 3.321 (b); and the claim for a TDIU should take into consideration the evidence submitted by the Veteran in October 2015 and September 2017. If the benefits sought are not fully granted, furnish a Supplemental Statement of the Case, before the claims file is returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs